Bakulha & 48 Others v Uganda (Miscellaneous Application 17 of 2022; Miscellaneous Application 18 of 2022) [2022] UGHCICD 8 (19 December 2022)

Full Case Text

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (INTERNATIONAL CRIMES DIVISION) CRIMINAL MISCELLANEOUS APPLICATIONS 17 & 18 OF 2022 (ARISING FROM HCT-ICD-SC-0011-2018) (ARISING OUT OF JINJA CHIEF MAGISTRATE'S COURT CASE NO. AA64 OF 2016)**

**BAKULHA ALEX & 48 OTHERS................................................ APPLICANTS VERSUS UGANDA....................................................................................... RESPONDENT**

#### **BEFORE: HON. JUSTICE ALICE KOMUHANGI KHAUKHA**

#### **RULING**

#### **Introduction**

This is a ruling in respect of Criminal Miscellaneous Applications Nos. 17 & 18 of 2022 for bail. The applications were brought under Article 23 (6) (a) of the Constitution of the Republic of Uganda and Rule 2 of the Criminal Procedure (Application) Rules. This Court consolidated the two applications and handled them as one because both were arising out of the same session case that is, HCT-00-ICD-SC-0011-2018. The Applicants are charged collectively and/or individually with various capital offences as per the indictment on court record to wit: Treason contrary to section 23 (1), (a), (c) and (d) of the Penal Code Act, Cap. 120, Misprision of treason contrary to section 25 of the Penal Code Act, Cap.120, Terrorism contrary to section 7 (1) (A) and (2) (B) of the Anti-Terrorism Act, 2002, Murder contrary to sections 188 and 189 of the Penal Code Act, Cap. 120, Attempted murder contrary to section 204 (a) of the Penal Code Act, Cap. 120, Aggravated Robbery contrary to sections 285 and 286 (2) of the Penal Code Act, Cap. 120 and Kidnapping with intent to murder contrary to section 243 (1) (a) of the Penal Code Act, Cap. 120.

# **Representation**

The applicants were represented by Counsel Alfred Makasi and Counsel David Bwambale both on private brief while the respondent was represented by Mr. Joseph Kyomuhendo, Chief State Attorney and Ms. Marion Benbella, State Attorney both from the Office of the Director of Public Prosecutions. All forty-nine (49) applicants were present at Jinja Main Prison where the hearing of the application was conducted from.

# **The Application**

The application is by way of a Notice of Motion and supported by individual Affidavits and supplementary Affidavits of all the applicants. The supplementary Affidavits had annexures "A" and "B". Annexure "A" is entitled, "*General Medical Report for the Rwenzururu remand prisoners*" authored by Dr. Mugalu Mark In-Charge, Jinja Main Prison Health Centre III while annexure "B" is a table showing the health condition of each applicant.

The applicants' Affidavits can be summarized as follows:

- 1. That the applicants were arrested on the 27th day of November 2016 from Buhikira Royal Palace in Kasese District; - 2. That on the 14th day of December 2016, the applicants were charged with the offences of Treason contrary to section 23 (1), (a), (c) and (d) of the Penal Code Act, Cap. 120, Misprision of treason contrary to section 25 of the Penal Code Act, Cap.120, Terrorism contrary to section 7 (1) (A) and (2) (B) of the Anti-Terrorism Act, 2002, Murder contrary to sections 188 and 189 of the Penal Code

Act, Cap. 120, Attempted murder contrary to section 204 (a) of the Penal Code Act, Cap. 120, Aggravated Robbery contrary to sections 285 and 286 (2) of the Penal Code Act, Cap. 120, Kidnapping with intent to murder contrary to section 243 (1) (a) of the Penal Code Act, Cap. 120 and Malicious damage to property contrary to sections 335 (1) of the Penal Code Act, Cap. 120;

- 3. That it is the applicants' fundamental constitutional right to apply for bail before this honorable court; - 4. That the applicants are presumed innocent and intend not to plead guilty to all the charges which they strongly believe are false, fabricated and intended to embarrass them and the institution of their kingdom which they symbolize; - 5. That the applicants have been attacked by various ailments from prison for which they seek bail so that they can get treatment from home; - 6. That the applicants will not abscond when released on bail since they want to ensure that their innocence is proved through trial on the face of such grave malicious allegations of capital offences against them; - 7. That the applicants have fixed places of abode in Kasese and other Districts in the Rwenzori region; - 8. That there are no other pending criminal charges whatsoever against the applicants; - 9. That the applicants have sound and substantial sureties within the jurisdiction of the honorable court who have undertaken to ensure that the applicants shall comply with the conditions of bail especially attend their trial; - 10. That there is no likelihood of them interfering with investigations and/or witnesses; - 11. That this honorable court has wide discretionary powers to release the applicants on bail as these offences are bailable by this honorable court; - 12. That the applicants shall abide by any and all the bail conditions imposed upon them by this honorable court;

- 13. That it is only fair, just, constitutional and in the interest of justice that the applicants are granted bail pending their trial; and - 14. That it is in the interest of justice that this honorable court exercises its discretion in favor of the applicants.

Ms. Jacquelyn Okui, Senior State Attorney, Office of the Director of Public Prosecutions filed an Affidavit and a supplementary Affidavit opposing the application. Both Affidavits can be summarized as follows:

- 1. That the pre-trial hearing has commenced and prosecution has disclosed most of the evidence and identities of the witnesses to court and to the applicants as required; - 2. That the nature of the offences with which the applicants are indicted are serious and violent; - 3. That all the applicants belong to the institution of Obusinga Bwa Rwenzururu (OBR) which is very powerful and influential in the Rwenzori region with wellorganized paramilitary structures and has since instigated violence against those opposed to the ideology of seceding and creating the Yira Republic; - 4. That the High Court took judicial notice of the volatile security situation in the Rwenzori region, and consequently made an Order restricting the Rwenzururu king (A1 Charles Wesley Mumbere) and his Prime Minister (A152 Thembo Katsumbire) who are jointly indicted with the applicants from accessing areas of the Rwenzori until further directive is obtained. The Order is still in force; - 5. That one hundred thirty-two (132) out of two hundred (200) accused persons jointly indicted with the applicants were released on bail and the respondent did not object to their release on bail after a security risk assessment revealed that the 132 accused did not present a high threat or risk to the witnesses and case if released on bail;

- 6. That the respondent is reliably informed by Assistant Superintendent of Police (ASP) Ayebare Emmanuel Benon, an investigating officer in this case, that the applicants if released on bail will create a high security threat and risk to the witnesses and the case. The general security in the entire region is still tense. The OBR members who are still at large in the Rwenzururu region continue to instill fear and intimidation within the community for those opposed to their violent activities; - 7. That the applicants do not have fixed places of abode within the jurisdiction of this honorable court. They all ordinarily resided at Buhikira Royal Palace of Rwenzururu kingdom in Kasese District before their arrests. The palace has since been treated as one of the scenes of crime and access to it is restricted to all the OBR members including the applicants; - 8. That the trial of all the applicants and others commenced with the pre-trial proceedings in 2019 but it was interrupted by COVID-19 pandemic and the twoyear lock down period. The proceedings have now resumed and the Respondent is confident that there will be no further delay in concluding the trial; - 9. That all the applicants do not have sound sureties within the jurisdiction of this honorable court and if granted bail, there is a high likelihood that they will abscond; - 10. That there is a high likelihood of the applicants interfering with the witnesses if bail is granted. The respondent disclosed the evidence and identities of most of the witnesses to all the applicants. The witnesses are known to the applicants and to those they are jointly indicted with; - 11. That the health condition of the applicants cannot solely be relied upon to allow the application. The applicants have not provided proof that any alleged health conditions they may have cannot be adequately managed while they are in prison;

- 12. That there is overwhelming evidence that the applicants were involved in the commission of the offences indicted and if bail is allowed, the applicants may most likely abscond; - 13. That ground one of the application is misleading as not all applicants were arrested on 27th November 2016 from Buhikira Royal Palace in Kasese District. Applicant No. 6 (Bwambale Nelson alias Muhambene) was arrested while trying to flee the scene of crime in the attack at Kidodo Police booth before 27th November 2016, Applicant No. 33 (Mugisa Bikoba Jamil alias Kibanda) was arrested in July 2019, Applicant No. 8 (Kule Eriya Sibendire alias Muleju) and Applicant no. 32 (Yowasi Wasesera) were arrested on 24th November 2016 from Kamabale at a Kirumiramuthima established military camp at the foothills of mountain Rwenzori; and - 14. That it is in the interest of justice and fairness that the application is not allowed and bail is denied.

#### **Submissions**

Counsel for the applicants and the respondent made oral submissions for and against the bail application respectively. The applicants' submissions were made by Counsel David Bwambale while the submissions of the respondent were made by both Ms. Marion Benbella (State Attorney) and Mr. Joseph Kyomuhendo (Chief State Attorney). The rejoinder to the submissions of the respondent was made by both Counsel Alfred Makasi and David Bwambale.

## **The applicants' submissions**

Counsel David Bwambale while relying on Article 28 (3) (a) submitted that all the applicants are presumed innocent and none intends to plead guilty. That they all have fixed places of abode in Kasese, Kabarole, Bundibugyo and Bunyangabu Districts. That the applicants have been on remand since 27th November 2016 (6 years) without any trial.

Counsel further submitted that the applicants had proved exceptional circumstances as provided for in section 15 (1) and (3) of the Trial on Indictments Act (hereinafter referred to as the T. I. A) upon which court should consider their release on bail. He stated that he was aware that the grant of bail is a discretion of court and invited the court to exercise its discretion in favour of the applicants.

On the issue of advanced age, Counsel submitted that he would take 50 years to be old age. That a total of 14 applicants are all above 50 years of age. He further submitted that 9 of the applicants are below 35 years of age and that this was their most productive age. That the applicants have been remanded for six (6) years and the remand period is "eating up" their entire future. That all the female applicants are below 36 years of age and their chances of marriage are becoming slimmer.

Counsel further submitted that all applicants suffer from various ailments which were explained by Dr. Mugalu Mark, In-Charge, Jinja Main Prison Health Centre III and contained in the annexures "A" and "B". He invited the court to put them into consideration and grant the applicants bail.

Counsel also stated that all the applicants have children and families at home. That they were just royal guards and peasants and their continued incarceration is affecting their families.

Counsel further submitted that the applicants presented six (6) sureties of which the first four (4) were found substantial by this very court under Miscellaneous Application No. 001 of 2021 when they stood as sureties for one hundred thirty-two (132) bail applicants on the same file. That all the applicants have a connection to the OBR and they are so

loyal to the kingdom. That the 1 st surety, Hon. Kule Muranga Joseph is the Prime Minister and he can prevail over them. The 4 th surety, Mr. Matte Magwara is the Deputy RDC in charge of security. That those sureties have previously ensured that the 132 accused persons that were granted bail appear in court as and when they are required. He therefore prayed that the court finds them substantial.

Counsel averred that the investigations in the matter are complete and therefore the applicants will not interfere. That he has interacted with the applicants and they are more than ready to face trial and none of them will abscond.

## **The respondent's submissions**

Mr. Joseph Kyomuhendo vehemently opposed the bail application and made an opening statement regarding the security situation prevailing in the Rwenzori region. He stated that the security situation in the Rwenzori region is volatile caused by the applicants through their militia group, the royal guards. That this honorable court has taken judicial notice of the fragile security situation and that explains why the court was sitting in Jinja and not Kasese. He entreated the court not to grant bail to the applicants because doing so would aggravate the situation. He further submitted that this honorable court took note of the security situation in the region and imposed movement restrictions on A1 and A152 by prohibiting them from going back to the Rwenzori region.

Mr. Joseph Kyomuhendo, while relying on the affidavit in reply to the bail application deposed by Ms. Jacqueline Okui (Senior State Attorney) listed the grounds upon which the respondent based her objection to the bail application as:

- (a) the applicants having no fixed place of abode within the jurisdiction of the court; - (b) the sureties presented to court not being substantial; - (c) the applicants save for only two of them not being persons of advanced age; - (d) the applicants failing to prove exceptional circumstances;

- (e) the applicants being indicted for multiple counts and serious offences; and - (f) the applicants' likelihood to interfere with the witnesses.

Ms. Marion Benbella (State Attorney) submitted on the exceptional circumstances of grave illness, advanced age and the likelihood of absconding by the applicants while Mr. Joseph Kyomuhendo submitted on the remaining grounds of objection.

In her submissions, Ms. Marion Benbella stated that whereas the right to apply for bail is automatic, the grant thereof is discretional under the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 paragraph 6 (hereinafter referred to as **the Bail Guidelines**). While relying on the case of *Col. (Rtd) Dr. Kiiza Besigye Versus Uganda, Constitutional Reference No. 20 of 2005 at page 5 paragraph 3*, she contended that the cardinal consideration by the court in the exercise of its discretion as to whether or not to grant bail is the likelihood of absconding if granted bail. She further contended that the exceptional circumstances to be considered before a decision to grant bail is made are clearly set out in section 15 (1) and (3) of the Trial on Indictments Act (T. I. A). She stated that exceptional circumstances which are defined as grave illness, advanced age or infancy or a certificate of no objection are a creature of statute and they must be proved before a decision to grant bail is made. She relied on the case of *Igamu Versus Uganda, Criminal Miscellaneous Application No. 107 of 2013* at pages 17 and 18.

Ms. Benbella contended that in an attempt to prove exceptional circumstances, the applicants sought to rely on grave illness (Annexures "A" and "B"). She submitted that annexure "A" is a general medical report of the condition of the Rwenzururu prisoners and does not bring out/prove the health status of the individual applicants. It was also Ms. Benbella's contention that paragraph 5 in all the supplementary Affidavits in support of the bail application does not prove that the applicants' health condition cannot be managed while in prison. That Annexure "B" authored by the In-Charge of Jinja Main Prison which lists all the applicants with the health conditions is not authored and certified by a medical practitioner. That even if it was, it does not state that the ailments cannot be adequately managed while in prison. That this exceptional circumstance has not been proved justifying the release of the applicants on bail.

Ms. Benbella also submitted that advanced age in respect of bail according to the Bail Guidelines in paragraph 4 is 60 years and above. That only two applicants are above the age of 60 years and the rest of the applicants are not of advanced age and neither are they infants. That this should not be a ground for bail because the accused persons are all young and healthy.

On the ground of a high likelihood of absconding by the applicants, Ms. Benbella while relying on paragraph 11 of the Affidavit in objection submitted that all the applicants have no fixed places of abode within the jurisdiction of the court. She cited the case of *Foundation for Human Rights Initiative Versus Attorney General, Constitutional Petition No. 20 of 2006*, and submitted that the applicants' fixed place of abode within the jurisdiction of the court is of paramount importance. She argued that the majority of the applicants were royal guards of the kingdom and that they were residing at the Royal Palace at the time of their arrest as per their affidavits. The royal palace has since become a scene of crime with restricted access.

She submitted that the applicants indicated Kidodo Cell as their places of residence but did not attach the Letters of Introduction from the Local Council 1 Chairperson as required under paragraph 12 (b) of the Bail Guidelines. The places of abode stated in the main affidavit are different from what is in the supplementary affidavits. For example, the affidavits in support of the application and the supplementary affidavits of Masereka William and Muliki Juma are different. This means that the applicants currently have no known fixed place of abode and releasing them on bail would mean that they have nowhere to stay and it would be hard to follow them up. While relying on the case of *Wepukhuli Nuguli Versus Uganda, Criminal Application No. 21 of 2001,* she submitted that the contradictions in the places of abode are major and should not be ignored.

On the ground of seriousness of the offences, Mr. Kyomuhendo while relying on paragraphs 2, 5, 8, 10 and 13 of the Affidavit in objection submitted that the applicants are charged with very serious offences most of which attract a maximum death penalty upon conviction. He cited the cases of *Tigawalana Bakali Ikoba versus Uganda, Criminal Application No. 23 of 2013* at page 3, *Obey Christopher and Others versus Uganda, Miscellaneous Application Nos. 045, 046 and 047 of 2015* at page 6 and contended that courts have held that the more serious or grave the offences, the more likely that the accused persons will abscond upon being granted bail and courts should consider that while making decisions in bail matters.

Mr. Kyomuhendo also argued that the applicants are charged with offences involving extreme violence namely: Terrorism, Treason, Murder, among others, which may tempt them to abscond and interfere with the prosecution witnesses. He further submitted that the prosecution has disclosed all the evidence and witnesses they intend to rely on to the defence team and even in the midst of witness protection measures, the witnesses will not be completely free from insecurity and intimidation.

Mr. Kyomuhendo further contended that the prosecution has overwhelming evidence against all the applicants which will cause the applicants to interfere with the witnesses. He took note of the 132 co-accused persons that are already on bail and contended that this was done carefully after making a security risk assessment. While relying on paragraphs 17 and 18 of the respondent's affidavit in reply, Mr. Kyomuhendo submitted that the accused persons already granted bail were not considered to pose a problem to the security situation in the Rwenzori region while the 49 applicants are a threat to the security situation in the region.

Mr. Kyomuhendo also invited court to consider the peculiar circumstances of the case and deny the applicants' bail. He relied on the case of *Col (Rtd) Dr. Kizza Besigye Versus Attorney General, Constitutional Reference No. 20 of 2005* and argued that whereas the applicants have a right to apply for bail, it is the duty of the court to balance the rights of the accused persons/applicants, victims and concerns of the society while considering whether or not to grant bail. He also submitted that the trial in this matter was delayed by the COVID 19 pandemic but the pre-trial has since commenced, and no more delays are expected.

# **Applicants' submissions in rejoinder**

Counsel Alfred Makasi while rejoining on the issue of the security in the Rwenzori region stated that the respondent had not furnished the court with any report that there is insecurity in the region and the applicants will escalate it. He argued that one of the sureties is the Deputy Resident District Commissioner of Kasese District who is in charge of security and conversant with the security situation in the region. He contended that if there was any security threat, he would not have offered himself as a surety.

Concerning the medical reports, Counsel Makasi argued that annexures "A" and "B," are medical reports by Dr. Mugalu, In-Charge of Health Centre III of Jinja Main Prison and the prosecution did not furnish anything to the contrary.

Regarding the contradictions on the places of abode of the applicants, Counsel relied on the cases of *Okello Augustine versus Uganda, Criminal Miscellaneous Application No. 006 of 2012 and Masaba Geoffrey versus Uganda, Criminal Miscellaneous Application No. 38 of 2016* and submitted that they were minor and a mere technicality and invited the court to ignore them. He insisted that what court should mainly concern itself with is that the applicants will not abscond because there are substantial sureties. Besides, the sureties have ensured that the accused persons that have previously been granted bail are honoring their bail terms. Mr. Makasi further submitted that the issue of interference with the witnesses does not arise because the prosecution recently obtained from the court an Order for witness protection which was aimed at securing the witnesses.

Counsel David Bwambale also in rejoinder argued that though the applicants were arrested from the palace, they had their permanent residences which are their fixed places of abode. On the aspect of seriousness of the offence, Counsel Bwambale submitted that they are just allegations which have not been proved and the applicants insist on their innocence and they look forward to the trial to confirm their innocence and therefore they will not abscond. Besides, none of the accused who were granted bail has failed to turn up to the court when they were required. He invited the court to follow its precedents in this case and grant the applicants bail as 134 co-accused persons are already on bail granted by this honorable court.

# **Position of the Law**

Article 23 (6) (a) of the Constitution of the Republic of Uganda, 1995 (as amended) stipulates that:

*"Where a person is arrested in respect of a criminal offence, the person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable."*

# Article 28 (3) (a) of the constitution of the Republic of Uganda, 1995 (as amended) provides that:

*"Every person who is charged with a criminal offence shall-*

*(a) Be presumed innocent until proved guilty or until that person has pleaded guilty;"*

# Section 14 of the Trial on Indictments Act, Cap. 23 provides for release on bail.

### Sub-section 1 thereof stipulates that:

*"The High Court may at any stage in the proceedings release the accused person on bail, that is to say, on taking from him or her a recognizance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date and at such a time as is named in the bond."*

### Section 15 of the T. I. A provides for refusal to grant bail.

#### Sub-section 1 thereof provides that:

*"Notwithstanding section 14, the court may refuse to grant bail to a person accused of an offence specified in sub-section (2) if he or she does not prove to the satisfaction of the court-*

- *(a) that exceptional circumstances exist justifying his or her release on bail; and* - *(b) that he or she will not abscond bail."*

#### Subsection 2 thereof stipulates that:

*"An offence referred to in subsection (1) is-*

- *(a) an offence triable by the High Court;* - *(b) an offence under the Penal Code Act relating to acts of terrorism or cattle rustling;* - *(c) an offence under the Firearms Act punishable by sentence of imprisonment of not less than ten years;* - *(d) abuse of office contrary to section 87 of the Penal Code Act;* - *(e) rape, contrary to section 123 of the Penal Code Act and defilement contrary to sections 129 and 130 of the Penal Code Act;* - *(f) embezzlement, contrary to section 268 of the Penal Code Act;* - *(g) causing financial loss, contrary to section 269 of the Penal Code Act;*

- *(h) corruption, contrary to section 2 of the Prevention of Corruption Act;* - *(i) bribery of a member of a public body, contrary to section 5 of the Prevention of Corruption Act; and* - (j) *any other offence in respect of which a magistrate's court has no jurisdiction to grant bail."*

## Subsection 3 thereof provides that:

*"In this section, "exceptional circumstances" means any of the following-*

- *(a) grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;* - *(b) a certificate of no objection signed by the Director of Public Prosecutions; or* - *(c) the infancy or advanced age of the accused."*

### Subsection 4 thereof stipulates that:

*"In considering whether or not the accused is likely to abscond, the court may take into account the following factors-*

- *(a) whether the accused has a fixed place of abode within the jurisdiction of the court or is ordinarily resident outside Uganda;* - *(b) whether the accused has sound sureties within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;* - *(c) whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and* - *(d) whether there are other charges against the accused."*

# The Bail Guidelines 2022, further provide for considerations for bail. Paragraph 13(1) thereof provides that:

*"The court shall consider the following in handling a bail application:-*

- *(a) the gravity of the offence;* - *(b) the nature of the offence;* - *(c) the antecedents of the applicant so far as they are known;*

- *(d) the possibility of a substantial delay of the trial;* - *(e) the applicant's age, physical and mental condition;* - *(f) the likelihood of the applicant to attend court;* - *(g) the stage of the proceedings;* - *(h) the likelihood of the applicant to commit an offence while on bail;* - *(i) the likelihood of the applicant interfering with witnesses;* - *(j) the safety of the applicant, the community and the complainants;* - *(k) whether the applicant has a fixed place of abode within Uganda or whether he or she is ordinarily resident outside Uganda;* - *(l) whether the applicant has sufficient sureties within Uganda to undertake that the applicant shall comply with the conditions of his or her bail;* - *(m) whether the applicant has on a previous occasion when released on bail, failed to comply with his or her bail terms;* - *(n) whether there are any other charges pending against the applicant; or* - *(o) Whether the offence for which the applicant is charged involved violence."*

## **Decision**

From the above provisions of the law, it is apparent that the two broad factors for court's consideration while making a decision whether or not to grant bail are:

- *(a)that exceptional circumstances exist justifying his or her release on bail; and* - *(b) that he or she will not abscond bail."*

### **Exceptional Circumstances**

In the application before me, all the 49 applicants sought to rely on grave illness as an exceptional circumstance and in addition, a few others sought to rely on advanced age. I will deal with grave illness first and later consider advanced age.

# **a) Grave Illness**

The applicants sought to rely on Annexures "A" and "B" which they attached on their individual supplementary affidavits. As earlier noted, Annexure "A" is entitled, "*General Medical Report for the Rwenzururu Remand Prisoners*" while Annexure "B" is a compilation of all the names of the applicants indicating the charges against them and the ailments complained of. Annexure "A" is authored by Dr. Mugalu Mark In-charge Jinja Main Prison Health Centre III while Annexure "B" was compiled by Kuboi Ben Moses (SP) Officer in charge of Uganda Prison Jinja Main.

In addition, all the applicants in paragraph 5 of their affidavits indicated the ailments complained of and made reference to Annexure "A"

From the onset, I need to observe that none of the applicants furnished the court with evidence of "*grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody*" within the meaning of Section 15(3) of the T. I. A. Annexure "A" which the applicants sought to rely on as the title suggests is a general medical report for the Rwenzururu Remand Prisoners. It is not specific to individual applicants. For clarity purposes, I will reproduce the whole report in this ruling. It reads as follows:

"*In general, the health condition of these prisoners is fair, all of them are stressed by the complication of their case and the over delay of their hearing, and this is evidenced by a good number of developing abdominal ulcers, hypertension, depression and post-traumatic stress disorder. Some are elderly and their bodies are naturally weakening due to advanced age and psychological stress thus this making their life fragile and increased susceptibility to life threatening communicable and non-communicable diseases in prison e.g., TB, micronutrient deficiencies and skin diseases. Those that are not of advanced age, have individual complaints that are not life threatening if well managed e.g., gunshot wound scars, hernias, hemorrhoids and eye conditions. Thus any legal assistance rendered to them is highly appreciated."*

First and foremost, from the above report, it is apparent that the Medical Doctor did not examine individual applicants to ascertain what each of them is suffering from and if at all he did, that information was not availed to the court. He does not make any reference to Annexure "B" which purports to give the medical condition of each one of them and there is no nexus between the two Annexures. As already observed, Annexure "B" was compiled by Mr. Kuboi Ben Moses (SP) Officer in charge Uganda Prison Jinja Main who is clearly not a medical officer. It is also not clear what is the source of the information he put against each of the applicants regarding their aliments.

Secondly, the medical doctor does not state that the general ailments of the applicants as described in Annexure "A" cannot be managed while in the prison. He in fact concluded that save for the elderly, the others have complaints that are not life threatening if well managed and he did not state that he has failed to manage them. Besides, no evidence was adduced to show that any of the applicants was on treatment for any ailment while in the prison. I also wish to add that I had the opportunity of looking at all the applicants and most of them looked generally healthy and the leadership of Jinja Main Prison should be credited for that.

In light of the above, I find that none of the applicants has proved to the satisfaction of the court the existence of grave illness to the required standard as provided for under Section 15 (3) of the T. I. A.

# **b) Advanced Age**

The Bail Guidelines 2022, defined "advanced age" to mean sixty (60) years and above (See Paragraph 4).

In the application before me, only 3 applicants are aged 60 years and above namely **Kule Eriya Sibendire alias Mureju (8th applicant) aged 74 years**, **Bwambale Bahingana (22nd applicant) aged 66 years** and **Bahangondi Daudi (40th Applicant) aged 70 years.** The rest of the applicants are aged between 24 years and 58 years, the majority being in their thirties and forties. This therefore means that only three applicants as specified above qualify to be said to be of advanced age and clearly none is an infant.

# **The likelihood of the applicants absconding if granted bail**

Section 15 (4) of the T. I. A provides that: *"In considering whether or not the accused is likely to abscond, the court may take into account the following factors-*

In the instant application, no evidence was adduced to show the existence of (c) and (d) above. It is therefore presumed that the applicants have not previously been released on bail and failed to comply with the conditions of their bail; and there are no other charges pending against them save for the current ones. This leaves me with only (a) and (b).

# **i. Whether the accused has sound sureties within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail.**

Regarding the substantiality of the sureties, Paragraph 15 of the Bail Guidelines provides guidance on what to consider while determining the suitability of the sureties namely:

- *(a) the age of the surety;* - *(b) work and residence address of the surety;* - *(c) character and antecedents of the surety;* - *(d) relationship to the accused person and* - *(e) any other factor as the court may deem fit.*

Sub Paragraph (2) thereof provides subject to sub paragraph (1), the proposed surety shall provide documentary proof including –

- *(a) a copy of his or national Identity Card, passport or aliens identification card;* - *(b) an introduction letter from the Local Council I chairperson of the area where the surety is ordinarily resident; or*

In the instant application, the applicants produced the following sureties.

1) Rt. Hon. Kule Muranga Joseph

**Age:** 68 years

### **National Identity Card Number:** CM54015108NUCC

**Contact:** 0772-451218/ 0702-451218

**Residence:** Kabatunda village, Kyabarungira sub-county, Kasese District. An LC letter of residence was filed.

**Occupation:** Currently the Prime Minister of Rwenzururu kingdom, farmer, real estate dealer, former Head Master of Rwenzori High School, former Constituent Assembly delegate for Busongora North Constituency, former Member of Parliament in the 6th and 7th Parliament, former Resident District Commissioner (RDC) of Kiboga and Rubirizi Districts.

**Substantiality:** He is the first surety of 132 accused persons already on bail who are reporting in their various magisterial areas of origin namely: Kasese, Bundibugyo and Kabarole. He mobilized them to turn up in their respective magisterial courts when they were required during the pre-trial hearing and they all turned up.

## 2) Mr. Thawithe John Byaruhanga

**Age:** 64 years

## **National Identity Card Number:** CM58015107EDWK

**Residence:** Rwaking village, Bugoye parish, Bugoye sub-county, Kasese District. An LC letter was filed.

**Occupation:** Currently spokesperson of Rwenzururu kingdom to which the applicants subscribe, freelance journalist for the New Vision and a farmer.

**Substantiality:** In the former application of 132 accused persons, he was surety No. 2.

3) Mr. Ngasirwa Kimondo Justus

**Age:** 69 years

#### **National Identity Card Number:** CM53003101Q7VL

**Residence:** Muhumuza village, Kisambwa sub-county, Kasese District. An LC letter of Muhumuza Ward was filed.

**Occupation:** Retired secondary school teacher, a District Counsellor representing the elderly in Kasese District.

4) Mr. Matte Magwara

**Age:** 57 years

#### **National Identity Card Number:** CM65105100M3YJ

**Residence:** Kirabalo "A" Cell, Karabalo Ward, Kasese District. Has an LC letter from local leadership.

**Occupation:** Deputy Resident District Commissioner (RDC) of Kasese District with work I. D No. 2004, Retired Uganda Peoples' Defence Forces (UPDF) officer at the level of lieutenant and a farmer.

5) Mr. Kitalemire Abjeed

**Age:** 42-year-old

## **National Identity Card Number:** CM7901510AY64G

**Residence:** Kasese Municipality, Kisanga "B" Cell, Nyamwamba Division. An L. C 1 letter from Kisanga B Cell Nyambwa Division was filed.

**Occupation:** Primary teacher of Muhokya Primary School, Kasese District, an education assistant at Kasese District Local Government, Work I. D No. KDLG 3155, Deputy Minister of Education in the kingdom, student at the Law development Centre-Kampala Campus for a Diploma in Legal Practice.

6) Mr. Masereka Sylvest

**Age:** 55 years

**National Identity Card Number:** CM67015106YYJG

**Residence:** Kisanga "B" Cell. Kisanga Parish, Nyamwamba Division, Kasese Municipality. An LC letter introducing him was filed.

**Occupation:** Consultant as an agricultural professional.

Mr. Kyomuhendo contended that Mr. Kule Muranga Joseph and Mr. Thawithe John are already sureties for the 132 accused persons who are already on bail. He argued that giving them more responsibility with the applicants will be overloading them and they may not be able to perform the duty well. That for Mr Thawithe John, there is a contradiction between the LC Introduction Letter and the village on his National Identity card. He also stated that Mr. Matte Magwara Sebakira is a civil servant and transferable and if he is transferred, he will not be in a position to execute his duties. He further contended that Mr. Kitalemire Abjeed is a student at the Law Development Centre in Kampala and that he will not be able to perform the duties of a surety. It was Mr. Kyomuhendo's submission that the sureties are not substantial and invited the court to make that finding.

Counsel for the applicants on the other hand insisted that the sureties were substantial and the first and second sureties have previously ensured that the accused persons on bail comply with the bail conditions as and when they have been required by this honorable court.

I had the opportunity of looking at all the sureties produced by the applicants together with their identification documents and I am satisfied that they are substantial. The argument that the first and the second sureties will be overwhelmed by the responsibility of being sureties for the applicants in addition to what they already have, in my view does not stand. I agree with counsel for the applicants that the first surety who is currently the Prime Minister of the Kingdom has previously successfully committed to this honorable court during the pre-trial hearing to ensure that the accused persons on bail in the Districts of Kasese, Bundibugyo and Fort portal attend court via audio visual in those respective courts even when it was not their day for reporting.

In light of the above therefore, I find that all the sureties presented are substantial.

# **ii. Whether the accused has a fixed place of abode within the jurisdiction of the court or is ordinarily resident outside Uganda.**

In this application, court had four sources from which to establish the places of abode of the applicants as provide by them namely, their affidavits in support of the application, the supplementary affidavits, their police statements already disclosed by the prosecution and the oral interview in the court during this application. Having thoroughly read and considered all those sources, I find that some of the applicants provided different places of abode in the different said sources.

For instance, only Bakhula Alex, Byakumba Zakeli, Mbusa Mustafa Saad, Mbitso Josephat, Kule Peti alias Brown, Mbathulhagwo Johnson, Bwambale Mbahigana Gabona Gabriel, Kule Erias, Kule Manasi Muhesi, Irenge Robinson, Bakedya Andrew, Musuka James, Kaitango Bogere, Muhindo Ramishangi, Yowas Wasesera, Mugisa Bikoba Tamiru, Baluku Alfred, Thagembwa Joram, Butsilo Alex, Kahuju Johnson, Bahangondi Daudi, Isabana James, Mumbere Samson, Wakina Gadi Bwambale, Biira Regina and Kabugho Provia gave the same place of abode in their affidavits in support, supplementary affidavits and during the oral interview in the court.

The other applicants provided different places of abode in the various sources. I noted that whereas the information on the affidavit in support was the same as what was provided in court, it was different from what was given in the supplementary affidavits. The contradictions in the places of abode were not explained. Section 15(4) of the T. I. A provides, that while determining whether or not an applicant will abscond when granted bail, court may take into account whether the applicant has a fixed place of abode within the jurisdiction of the court. (Emphasis is mine) The contradictions in the places of abode provided by some of the applicants is evidence that they do not have fixed places of abode and in the event there is need for the court to trace them, this would pose a challenge. The fact that this court has already made a finding that the sureties are substantial does not cure this because court should be able to find the applicants from their known places of abode independent of the sureties whenever there is need.

In addition to the above considerations as provided in the law, the courts have provided further guidance on bail and the common position of the courts is that though the right of the accused person to apply for bail is an entitlement and therefore automatic, whether or not to grant bail is the discretion of the court upon considering a number of factors, among which is the nature or gravity of the offences with which the applicant/ accused is charged with and the need to consider public/societal interests.

#### **(a) Seriousness of the offence**

In the case of *Dr. Ismail Kalule and 3 others versus Uganda*, **Criminal Miscellaneous Applications No. 57, 58, 59, 60, of 2010,** Hon. Justice Alphonse Owiny Dollo-Chigamoy (as he then was) observed that:

"…*In the converse is the need for court to determine whether in the circumstance of the case, the applicant will turn up for trial or abscond when granted bail. There are well established guidelines court should adhere to, in exercise of this discretion, in considering the issue of bail. These include the nature and gravity of the offence the accused is charged with, the severity of the sentence that could result therefrom if conviction is secured, the antecedents of the applicants in so far as they are known, whether or not the* *applicant has a fixed place of abode within the jurisdiction of the court, the likelihood of the applicant interfering with the prosecution witnesses and whether the applicant has presented substantial sureties.*

*In the instant case before me, except for A4 who has been charged in one count only, namely the lesser offence of being an accessory to the offence of terrorism after the facts, the Applicants and others have all been charged in multiple counts with various offences; to wit, 76 of murder, 10 of attempted murder, and 3 of terrorism. They have all been committed to the High Court for trial; and this was effected in a timely manner, before the expiry of the restricted period provided for in Article 23(6) (b) and (c) of the 1995 Constitution of Uganda which envisages completion of investigations by then, and otherwise would entitle a remand prisoner to mandatory admission to bail.*

*By any account, the allegations of murder of 76 persons in the manner alleged in the indictments amounts to mass homicide. They are certainly very grave allegations. These are further aggravated by the allegations of multiple acts of terrorism. Both offences attract the severe possible death sentence. The Court must certainly never lose sight of the constitutional provision of presumption of innocence whatever the nature of the offence charged. Nonetheless, the gravity of these offences and the severity of the sentence that may result from any conviction make it incumbent on the Applicants to present correspondingly strong grounds and justification for seeking to be admitted to bail. That is the essence of the provision of section 15 (1) (b) of the Trial on Indictments Act reproduced above; which makes it incumbent on the Applicant to satisfy Court that he will not abscond."*

In the instant application, I have read the Indictment and the Summary of the case and I find that there are 220 accused persons and fifty-six (56) counts and the charges are: one (1) count of Treason contrary to section 23(1) of the Penal Code Act, one (1) count of Misprision of Treason contrary to section 25 of the Penal Code Act, one (1) count of Terrorism contrary to section 7 of the Anti-Terrorism Act, eleven (11) counts of Attempted Murder contrary to section 204(a) of the Penal Code Act, twenty seven (27) counts of Murder contrary to section 188 and 189 of the Penal Code Act, eleven (11) counts of Aggravated Robbery contrary to sections 285 and 286 (2) of the Penal Code Act and two (2) counts of Kidnapping with intent to murder contrary to section 243(1)(a) of the Penal Code Act.

Clearly, but without losing focus of the presumption of innocence of the applicants, these are very serious allegations with multiple offences most of which would attract a maximum death penalty in the event of a conviction. Whereas this court can exercise its discretion and grant bail without proof of exceptional circumstances, I would be inclined to require exceptional circumstances before granting bail to the applicants in this case considering the gravity of the offences.

I take cognizance of the fact that 134 accused persons in this case have already been granted bail. However, I find that the applications are distinguishable. For example, I note that in Miscellaneous Application No. 001 of 2021 where 132 accused persons were granted bail, the applicants were only charged with three counts namely Treason, Misprision of treason and Terrorism. There were no additional charges as is the case with the applicants in this matter who are charged with other multiple offences namely, Murder, Attempted Murder, Aggravated Robbery and Kidnap with intent to murder.

Besides, there was no objection from the Prosecution to the grant of bail. In the instant application, the prosecution vehemently opposed the grant of bail in the two affidavits and during the submissions. Besides, in Miscellaneous Application No. 008 of 2017 where A152 Thembo Kitsumbire, the former Prime Minister was granted bail, the respondent filed no affidavit in objection and the court was satisfied that the applicant was aged sixty-five (65) years which is advanced age as provided for by Paragraph 4 of the Bail Guidelines.

#### **(b)Public interest/ public security**

As earlier observed, the respondent averred in her affidavits that the security situation in the Rwenzori region is still volatile and the applicants are a security threat and should not be granted bail because if granted bail, there is a high likelihood that they may instigate insecurity. Mr. Kyomuhendo vehemently submitted on this aspect and invited the court to consider the security aspect while determining whether or not to grant bail. Counsel for the applicants argued that the respondent had not produced any evidence to that effect. In the case of *Panju versus Republic [1973] E. A 282* which was quoted in the case of *Kizza Besigye versus Uganda, Criminal Application No. 83 of 2016*, the judge had this to say:

*"If the courts are simply to act on allegations, fears or suspicions, then the sky is the limit and one can envisage no occasion when bail would be granted whenever such allegations are made."*

In the case of *Kizza Besigye & Others versus Uganda, Criminal Miscellaneous Applications No. 228 and 229 of 2005*, Hon. Justice Ogoola PJ (as he then was) emphasized that the right to liberty is crucial in a free and democratic society. He observed thus:

*"Liberty is the very essence of freedom and democracy. In our constitutional matrix here in Uganda, liberty looms large. The liberty of one is the liberty of all. The liberty of one must never be curtailed lightly, wantonly or even worse arbitrarily. Article 23, clause 6 of the Constitution grants a person who is deprived of his or her liberty the right to apply to a competent court of law for grant of bail. The courts from which such a person seeks refuge or solace should be extremely wary of sending such a person away empty handed- except of course for a good cause. Ours are courts of justice. Our duty and privilege is to jealously and courageously guard and defend the rights of all in spite of all." (Emphasis is mine)*

However, in *Uganda (DPP) versus Co. (Rtd) Dr. Kizza Besigye, Constitutional Reference No. 20 of 2005*, the justices of the Constitutional court observed thus:

"*While considering bail, the court would need to balance the constitutional rights of the applicant. The needs of society to be protected from lawlessness and the considerations which flow from people being remanded in prison custody which adversely affects their welfare and that of their families and not least on the prison remand conditions if large numbers of unconvicted people are remanded in custody. In this respect, various factors have to be born in mind such as the risk of absconding and interference with the course of justice. Where there is a substantial likelihood of the applicant failing to surrender for turn up for trial, bail may only be granted for less serious offences. The court must weigh the gravity of the offence and all other factors of the case against the likelihood of the applicant absconding. Where facts come to light and it appears that there is substantial likelihood of the applicant offending while on bail, it would be inadvisable to grant bail to such a person.*"

The need to balance societal interests with the rights of the accused person while considering bail was further emphasized in the case of *Foundation for Human Rights* ## *Initiative Versus Attorney General, Supreme Court Constitutional Appeal No. 03 of 2009*, (supra) where the supreme court observed:

"*With respect to bail matters, it therefore follows that whereas court is supposed to bear in mind the rights of an accused person when considering his or her bail application, court should not lose sight of the needs and interests of society to prevent and punish crimes committed within its midst. This Article imposes on courts the duty to ensure that they do not only consider the rights of an accused person applying for bail. Rather, the court should also consider the interests of the society at large. This in turn calls for the need to balance the competing interests of the accused person on the one hand and society on the other hand. To ensure this balance, courts must at all times when dealing with a bail application bear in mind this fundamental aspect under Article 126 of the Constitution with regard to exercise of this judicial power".*

Under Article 126 of the Constitution, judicial power is derived from the people and must be exercised by the courts established under the constitution in the name of the people and in conformity with the law, and with the values, norms and aspirations of the people.

## In the case of *Dr. Ismail Kalule and 3 others versus Uganda (Supra),* Justice Alphonse Owinyi Dollo further observed:

*"There may well be instances where the fears, or suspicions expressed by the State are very much in the public domain; and which the Court may have to take judicial notice of. That by no means suggests that the Court looks at the Applicant with prejudice. The justice of the case requires that the accusations brought against such a person, and not the temporal issue of bail, should be attended to so that either conviction or acquittal may result; thereby bringing closure to the matter. This means the accused may then have to be inconvenienced with curtailment of his or her liberty for the greater good."*

## In the case of *Okello Augustine versus Uganda, Criminal Miscellaneous Application No. 006 of 2012,* court observed thus:

*"However, there should be peace and safety of the people and their property. The courts of law and all other organs of government have a duty to ensure that national and international security is preserved. Therefore, the fundamental rights of the individual must be balanced with this greater public interest. In this regard, court has to consider whether there is justification to interfere with the accused's right to liberty pending his/ her trial. The rationale of granting bail is that instead of keeping a suspect under harsh* *conditions of remand who might in the end be found innocent, he should not be incarcerated if the court is satisfied that he will turn up to answer the charges. So court must be satisfied that in the circumstances of the particular cases, the accused person will turn up to answer the charge at the trial and whenever he is required by court. In that regard, court must be conscious of the likelihood to abscond and or interfere with the investigations, witnesses and or evidence. Court has to weigh the gravity of the charges against the accused and the severity of the attendant sentence for the charge. The more serious the offence, the higher the temptation for an accused to abscond when released on bail. Therefore, court must be more cautious while exercising its discretion to or not to grant bail in the case of serious charges."*

In the instant case, the court previously took judicial notice of the security situation in the Rwenzori region and this explains why the applicants were remanded in Jinja Main Prison instead of the other prison facilities that are closer such as Fort portal main Prison. I also need to note that the hearing of this bail application was conducted at Jinja Main Prison in Jinja.

Counsel for the applicants submitted that this court has already granted bail to a large number of the accused persons who were jointly charged with the applicants who are currently in the Rwenzori region and they have not caused any insecurity. They also argued that one of the sureties is a Deputy Resident Commissioner, Kasese District charged with maintaining security and if there was any insecurity, he would know and he would not have offered himself to stand surety. However, as already observed, from the reading of the indictment in this case, there are a total of 220 accused persons jointly charged with a total of fifty-six (56) charges. Whereas all the 220 persons are indicted jointly for Treason, Misprision of Treason and Terrorism, the other counts involve specific accused persons, implying that those specific persons are alleged to have committed other multiple offences in addition to Treason, Misprision of Treason and Terrorism.

Having perused the indictment, I observe that all the applicants are charged with those additional multiple charges besides the counts of Treason, Misprision of Treason and Terrorism. For instance, Bakulha Alex, Muhindo Erius, Kule January, Sibanza John, Muliki Juma, Bwambale Nelson, Maate Jafar and Kahuju Johnson (1st, 2nd , 3 rd,4th,5th,6th,7th and 39th applicants respectively) are indicted on eight (8) counts of Attempted murder. The above applicants are also charged with one (1) count of Murder and one (1) count of Aggravated Robbery. Masereka Tadeo alias Matekere William (10th applicant) is indicted on 8 counts of murder, Biira Enid and Biira Regina are indicted on three (3) counts of Murder, Musoki Jovia alias Constance is charged with five (5) counts of murder among others.

The respondent in her affidavit averred that the applicants were considered to present a high threat or risk to the witnesses, the case and security generally after conducting a security risk assessment. The respondent further submitted that that is the reason why the respondent had no objection to the grant of bail to the 132 accused persons. I also observe from the indictment that whereas the other accused persons already granted bail were charged with only three counts, the applicants are charged with multiple crimes all of which are of a violent nature. I also take note of the fact that from the reading of the summary of the case, the offences were allegedly committed in a highly organized and coordinated manner leading to the death of twenty-seven (27) people, several robberies and attempts to murder and kidnaps with intent to murder. It is my considered view that the likelihood that the applicants may regroup, re-offend and cause insecurity cannot be ruled out.

I have read the affidavits of the applicants in which they complain of the long period of detention without trial and the fact that they do not know how long the trial would take even if it commenced now. I agree that some of the applicants have been on remand since 2017 which is indeed a very long period of time on remand without trial. Counsel for the respondent explained that the delay to handle this case was due to COVID 19 pandemic and the resultant two year-lockdown. I wish to note here that pretrial proceedings in this case have since commenced and this court is very committed to conclude it without any further delay.

In light of the above, I find that this case is one of those where this court would be hesitant to grant bail to the applicants where no exceptional circumstances have been proved to the satisfaction of the court.

In conclusion and for the above reasons, bail is hereby granted to the three applicants namely **Kule Eriya Sibendire alias Muleju (74 years), Bahangondi Daudi (70 years)** and **Bwambale Bahingana (66 years)** on account of advanced age. I wish to note that whereas the three applicants did not produce any documentary evidence to prove the ages they stated, I had an opportunity to observe them and I am satisfied that they are elderly. Bail is also granted to **Regheya Masereka Julius (58 years), Yowas Rubasesera (57 years)** and **Thaghembwa Joram (56 years).** Though they have not attained the age of 60 years (advanced age as interpreted by Paragraph 4 of the Bail Guidelines), they looked elderly according to my assessment.

Bail is therefore granted to the above named 6 applicants on the following terms and conditions.

# **1. Kule Eriya Sibendire alias Muleju (8thapplicant)** (74 years) **Conditions for bail**

- a) The applicant is to be bound by his own recognizance of Uganda Shillings Ten Million (UGX 10,000,000) NOT CASH. - b) The applicant's above named sureties are hereby approved and each is to execute a bond in the sum of Uganda Shillings Ten Million (UGX 10,000,000) NOT CASH. - c) The applicant shall report to the Deputy Registrar of Fort Portal, Fort Portal High Court Circuit on every last Friday of each month effective January 27th 2023 until the conclusion of the applicant's trial.

- d) The applicant shall provide, on the first reporting visit, a copy of his national identity card and an introductory letter from the Local Council I chairman confirming residence. - e) I direct that a Copy of this Order shall be served on the Deputy Registrar, Fort Portal High Court Circuit.

## **2. Bahangondi Daudi (40th applicant) (70 years)**

### **Conditions for bail**

- (a) The applicant is to be bound by his own recognizance of Uganda Shillings Ten Million (UGX 10,000,000) NOT CASH. - (b) The applicant's above named sureties are hereby approved and each is to execute a bond in the sum of Uganda Shillings Ten Million (UGX 10,000,000) NOT CASH. - (c) The applicant shall report to the Chief Magistrate of Kasese, Kasese Magisterial area on every last Friday of each month effective January 27th 2023 until the conclusion of the applicant's trial. - (d) The applicant shall provide, on the first reporting visit, a copy of his National Identity Card and an introductory letter from the Local Council I chairman confirming residence. - (e) I direct that a Copy of this Order shall be served on the Chief Magistrate, Kasese Magisterial area.

## **3. Bwambale Bahingana (22nd applicant)** (66 years)

### **Conditions for bail**

(a) The applicant is to be bound by his own recognizance of Uganda Shillings Ten Million (UGX 10,000,000) NOT CASH.

- (b) The applicant's above named sureties are hereby approved and each is to execute a bond in the sum of Uganda Shillings Ten Million (UGX 10,000,000) NOT CASH. - (c) The applicant shall report to the Deputy Registrar of Fort Portal, Fort Portal High Court Circuit on every last Friday of each month effective January 27th 2023 until the conclusion of the applicant's trial. - (d) The applicant shall provide, on the first reporting visit, a copy of his National Identity Card and an introductory letter from the Local Council I chairman confirming residence. - (e) I direct that a Copy of this Order shall be served on the Deputy Registrar, Fort Portal High Court Circuit.

## **4. Regheya Masereka Julius (9th applicant) (58 years)**

### **Conditions for bail**

**5. Yowas Wasesere (32nd applicant) (57 years)**

#### **Conditions for bail**

- (a) The applicant is to be bound by his own recognizance of Uganda Shillings Ten Million (UGX 10,000,000) NOT CASH. - (b) The applicant's above named sureties are hereby approved and each is to execute a bond in the sum of Uganda Shillings Ten Million (UGX 10,000,000) NOT CASH. - (c) The applicant shall report to the Deputy Registrar of Fort portal, Fort portal High Court Circuit on every last Friday of each month effective January 27th 2023 until the conclusion of the applicant's trial. - (d) The applicant shall provide, on the first reporting visit, a copy of his National Identity Card and an introductory letter from the Local Council I chairman confirming residence. - (e) I direct that a Copy of this Order shall be served on the Deputy Registrar, Fort Portal High Court Circuit.

### **6. Thaghembwa Joram (36th applicant) (56 years).**

#### **Conditions for bail.**

- (d) The applicant shall provide, on the first reporting visit, a copy of his National Identity Card and an introductory letter from the Local Council I chairman confirming residence. - (e) I direct that a Copy of this Order shall be served on the Chief Magistrate, Kasese Magisterial area.

Having considered the overall circumstances of this case and in light of the reasons given in this ruling, I am not fully satisfied that exercising the discretion of this court in favor of the rest of the applicants by releasing them on on bail will serve the greater interest of justice and the greater good of the society. The application for the rest of the applicants is therefore hereby dismissed.

However, very mindful of, and concerned about the long period the applicants have spent on remand and the findings in the general medical report on their health that they are suffering from stress due to the delay in their trial and uncertainties as to how long their trial will take, I hereby direct that the pre-trial hearing of this case shall be heard and concluded by the end of the month of March 2023. The Deputy Registrar of the International Crimes Division, the prosecution and the defence are hereby directed to make all the necessary preparations to ensure that this deadline is achieved without fail.

Resultantly, this application is concluded on the following orders:

- (a) **Kule Eriya Sibendire alias Muleju (8thapplicant), Bahangondi Daudi, (40th applicant) Bwambale Bahingana (22nd), Regheya Masereka Julius (9th applicant**) **Yowas Rubasesera (32nd applicant)** and **Thaghembwa Joram (36th applicant)** are hereby granted bail on the conditions stipulated in this ruling. - (b) The rest of the applicants are hereby denied bail and their application is accordingly dismissed.

- (c) The pre-trial hearing of HCT-ICD-SC-0011-2018 shall be conducted and concluded by the end of the month of March 2023. - (d) The Deputy Registrar of the International Crimes Division of the High Court, the prosecution and the defence are hereby directed to make all the necessary preparations to ensure that deadline is achieved. - (e) The Deputy Registrar of Fort Portal High Court Circuit and the Chief Magistrate, Kasese Magisterial area shall be furnished with a copy of this Order.

I so order.

## **Dated at Kampala this 19th day of December 2022.**

.............................................

Alice Komuhangi Khaukha **JUDGE** 19/12/2022